Here you will find summarised property law notes for the entire Monash University topic (Both Property A and Property B).
The summary notes are an excellent exam help, with steps to work out whether a particular issue is found in a problem question, and relevant precedent and case citations for that HD answer. They are short enough for use in an exam, but detailed enough that you will never miss a point.
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The following is a more accessible plain text extract of the PDF sample above, taken from our Property Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Topic 1 : Equitable Interests
Trusts:
Express Trusts
Must be evidence in writing 53(1)(b) PLA
Can be created:
Intervivos
Via a will
Created when:
Actual transfer to transferee
Declare yourself to be a trustee
Resulting Trusts (RT)
Definition: circumstances such that equity presumes, despite transfer of legal title to one person, that the transferor’s intention was for some/all of the equitable title to be retained by the transferor. Disregard paperwork, look at the contributions of those involved
If a court finds that a RT exists, X will hold beneficial interest in the property on trust for Y
BUT for a purchase price resulting trust, where two people have contributed to the purchase money in unequal shares, and the property is purchased in their joint names, in the absence of the presumption of advancement, there is a presumption that the property is held by the purchaser on trust for themselves as tenants in common in the proportions in which they contributed to the purchase price Calverley
Purchase price: what is considered to be a contribution to the purchase price?
Liability under a mortgage is part of the purchase price Calvery however subsequent contributions to mortgage payments by a person who is not a joint mortgagor do not give rise to the presumption Baumgartner v Baumgartner
Includes the home built shortly after buying the vacant lot Cummins
Presumption of RT:
Arises where a person purchases property and arranged for title to be transferred to another person, who provides no consideration Little v Little
Under this trust, it is presumed that the transferee holds the property on trust for the person providing the purchase money
When does it arise: when property is transferred to a volunteer or when property is purchased in the name of another
Rebutting the presumption
Intention to the contrary
Evidence of an actual intention (implied through words or conduct – not imputed through a reasonable person) to pass a beneficial interest at the time of the transfer or purchase Calverley
Can look at subsequent conduct after the transfer to determine original intent Cummins
Onus is on the person seeking to rebut the presumption
Where a husband and wife purchase a matrimonial home, each contributing to the purchase price and title is taken in the name of one of them, can be inferred that it was intended they both half one-half interest Cummins
The court is unlikely to find a PPRT in a matrimonial situation.
Irrelevant factors: Calverly:
Mortgage repayments
Non-financial contributions
Presumption of advancement
The transferee is presumed to take beneficial title when the transfer is from:
Husband to wife (or male fiancé to female fiancée)
Parent to child
Can be rebutted by a contrary intention:
i.e. that the provider of the purchase money intended to retain beneficial title
Evidence may include:
Husband’s purchase was made using damages he received after workplace accident and was for his own benefit for his own super fund Buffrey v Buffrey
Doesn’t matter if rebuttal was for an illegal purpose, can still be used Boumelhelm
Timing
Confined to actions at time of acquisition
Constructive Trusts (CT)
Common intention constructive trust (CICT)
Definition: equity will hold that a person has acquired an interest in property so as to prevent the holder of the legal interest in that property from behaving unconscionably, where the party has acted to their detriment Muschinski
CICT can help to save a party where there is a resulting trust Muschinski
The following three elements must be proven: Ogilvie v Ryan
Actual common intention
Can be inferred from words or conduct (but not imputed) Allen v Snyder
Detrimental Reliance
was one party induced to alter their position Ogilvie v Ryan
Even if there is no financial loss, the mere loss of bargain is enough Ogilvie
Examples:
Father paid for extension on condition he would live there Morris v Morris
Unconscionability
Would it be fraud on the defendant for the deceased or executor to assert his legal title to the property? Ogilvie v Ryan
Timing:
The CICT is made out when all elements are satisfied. Can occur before or after the property is acquired. Parsons
Joint Venture constructive trust (JVCT)
Definition: A JVCT arises where a JV, for which both parties pooled their resources, breaks down, without attributable blame Muschinski. Equity will intervene to prevent one party unconscionably retaining a benefit
The following elements must be satisfied:
Joint Venture:
The parties must be participating in a JV, that being a business or a relationship/family Baumgartner
This does not include simply lending money to another to realise their own endeavour
Living together is not enough to constitute a JV Willis v WA
Pooling of resources:
The P will need to show that the parties pooled their earning and efforts for the mutual security and benefit of the JC
Examples:
Direct financial contributions Baumgartner
Indirect financial contributions e.g. sacrifice earnings Baumgartner and potentially domestic contributions Peridge
Long stable family relationship in which marriage was under continuous contemplation
Look at reasons why they bought the house: Baumgartner
To secure accommodation for their child
Mutual security and benefit
To raise a family
Unlike Cummins, court has separated the additional money spend on duplexes from the purchase price. Baumgartner
JV breaks down without attributable blame
Courts are not concerned with blame Boumelhelm
Unconscionable
Examples:
Unconscionable to deny parents interest in property Boumelhelm
Unconscionable for man to walk away with woman’s contribution Baumgartner
Unconscionable for Mr D to seek a full half interest without making an allowance for the fact wife had contributed 10/11 of purchase price Muschinsky
Court held in Bryson v Bryant that it was not unconscionable for the man to...
Buy the full version of these notes or essay plans and more in our Property Law Notes.
Here you will find summarised property law notes for the entire Monash University topic (Both Property A and Property B).
The summary notes are an excellent exam help, with steps to work out whether a particular issue is found in a problem question, and relevant precedent and case citations for that HD answer. They are short enough for use in an exam, but detailed enough that you will never miss a point.
...
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